How a Court Becomes Supreme: Defending the Constitution from Unconstitutional Amendments

High courts around the world have increasingly invalidated constitutional amendments in defense of their view of democracy, answering in the affirmative what was once a paradoxical question with no obvious answer: can a constitutional amendment be unconstitutional? In the United States, however, the Supreme Court has yet to articulate a theory or doctrine of unconstitutional constitutional amendment. Faced with a constitutional amendment that would challenge the liberal democratic values of American constitutionalism—for instance an amendment restricting political speech or establishing a national religion—the Court would be left without a strategy or vocabulary to protect the foundations of constitutional democracy. In this Article, I sketch eight strategies the Court could deploy in order to defend American constitutional democracy—and to make itself truly supreme by immunizing its judgments from reversal by constitutional amendment

Infrared Absorption Associated with Strong Hydrogen Bonds

Several investigators have proposed that there exists a more or less unique relation between the O-O distance in O-H-O hydrogen bonds and the shift of O-H vibrational frequency. [1-5] However, the meager intensities of some bands which have been ascribed to this vibration (notably in nickel dimethyl-glyoxime and potassium dihydrogen phosphate) have made us a little skeptical of the correlation inthe case of very short, and possibly symmetrical, hydrogen bonds

Litigant Resources and the Evolution of Legal Precedent

This paper develops an informational model of litigation in which court decisions are a function of legal representation. In this model, resource constraints determine how much parties expend on legal representation. The allocation of resources across parties influences court decisions in two important ways. First, in individual cases the party with greater resources can produce more information, thereby increasing her probability of a favorable decision by the court. Second, as the cost of litigation increases relative to parties’ resources, courts have less information upon which to make decisions. We model the evolution of precedent as a dynamic externality under stare decisis. These factors determine the evolution of legal precedent. In areas of law in which parties on a particular side have persistently greater resources, the law is likely to evolve in a direction that favors that side. The extent of information provided determines the variability of outcomes.

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The Unamendable Core of the United States Constitution

Nothing in the United States Constitution is today formally unamendable. Yet it is worth asking whether the Constitution requires some form of implicit unamendability in order to survive according to its own terms. In this paper, I inquire whether anything in the Constitution — whose constitutional text, history and interpretation are rooted in the concept of popular sovereignty — should be regarded as informally unamendable. I conclude that, if the Constitution is to remain internally coherent, the informal unamendability of the First Amendment’s democratic rights may be a condition precedent to the Constitution’s promise of robust democracy. I nevertheless express some doubt about how political actors might reliably enforce an informally unamendable First Amendment. I suggest in closing that the optimal function of unamendability in modern constitutionalism is its expressive capacity, specifically that unamendability is more effective as a declaration of importance than as a referent for judicial enforceability

The Difficulty of Constitutional Amendment in Canada

Scholars of comparative constitutional law would suggest that the United States Constitution is the world’s most difficult democratic constitution to change by formal amendment. But in this paper I suggest that the Constitution of Canada may be even harder to amend. Modern Canadian political history has proven the textual requirements for major constitutional amendment so far impossible to satisfy, yet the extraordinary difficulty of formal amendment in Canada derives equally from sources external to the Constitution’s formal amendment rules. Major constitutional amendment also requires conformity with extra-textual requirements imposed by Supreme Court decisions interpreting the Constitution of Canada, parliamentary and provincial as well as territorial statutes, and arguably also by constitutional conventions — additional rules that may well make major constitutional amendment impossible today in Canada. These as-yet underappreciated extra-textual sources of formal amendment difficulty raise important questions for Canadian constitutionalism, namely whether in making the Constitution virtually impossible to amend they weaken democracy and undermine the purpose of writtenness

The Structure of Constitutional Amendment Rules

The structure of formal constitutional amendment rules has received little scholarly attention. Constitutional designers therefore have few academic resources to guide them in designing the rules of formal amendment — perhaps the most important part of any constitution. In this Article, I fill that void by creating a new classification of formal amendment rules based on my analysis of formal amendment rules in constitutional democracies. I explain and illustrate that formal amendment rules are conceptually structured in three tiers: (1) foundations, which either entrench or are silent on the distinction between constitutional amendment and revision; (2) frameworks, consisting of one of six combinations of comprehensive, restricted or exceptional single-track or multi-track procedures; and (3) specifications, which supplement amendment foundations and frameworks with voting thresholds, quorum requirements, subject-matter restrictions, temporal requirements, electoral preconditions and defense mechanisms. I also show how constitutional designers may use this classification to manage federalism, express constitutional values, enhance or diminish the judicial role, and pursue democratic outcomes related to governance, constitutional endurance, and amendment difficulty. My larger purpose is to enliven the study of formal amendment rules by generating a research agenda into their structure and uses, and the options they present to constitutional designers

Constructive Unamendability in Canada and the United States

Democratic constitutions often entrench provisions against formal amendment. For example, republicanism is formally unamendable in Italy, as is federalism in Germany, political pluralism in Portugal, and secularism in Turkey. Neither the Canadian Constitution nor the United States Constitution entrenches a similar form of formal unamendability. But both entrench a peculiar form of unamendability that results from neither constitutional design nor constitutional law but from constitutional politics. Constructive unamendability derives from a political climate that makes it practically unlikely, though not theoretically impossible, to meet the high thresholds the constitution sets for formal amendment unless constitutional politics somehow perform heroics. Faced with the constructive unamendability of a rule they wish to formally amend, political actors may resort to arguably legal though illegitimate methods to circumvent the strictures preventing formal amendment. In this Article, I classify the many forms of unamendability, I develop the concept of constructive unamendability, I illustrate that the Senate in both Canada and the United States is constructively unamendable, and I suggest how Canadian and American political actors might illegitimately amend the constructively unamendable Senate, a strategy the Government of Canada intended to pursue before the Supreme Court of Canada repudiated its Senate reform efforts in the recent Senate Reference